First Amendment Toolkit

Know Your Rights – Protests & Demonstrations in Honolulu

Presented as a public education service by the ACLU of Hawaii Foundation. Content freely useable for non-commercial purposes. Printed Toolkit presented with generous underwriting support from the Hawaii People’s Fund and the Sidney Stern Memorial Trust. Get a printer-friendly version here!: http://bit.ly/1GiaIHJ Last edit: 1/24/19

About this Toolkit: 3/2015 v.1.7.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment to the U.S. ConstitutionThis Toolkit provides basic information about how to protest lawfully.

The First Amendment protects speech (“expressive activity”) where the main goal is expression, dissemination, or communication of political, religious, philosophical, or ideological opinions, views, or ideas and where no fee is charged to participate or attend.

There is no single definition of “expressive activity,” but it’s often something like this: “Expressive activity” means speech or conduct, the principal object of which is the expression, dissemination, or communication by verbal, visual, literary, or auditory means of political, religious, philosophical, or ideological opinions, views, or ideas. Expressive Activity includes, but is not limited to, public oratory and the distribution of literature.

The right to protest government actions publicly is protected by the First Amendment to the U.S. Constitution. This right is not absolute. Even peaceful, non-violent protestors leading a march or waving picket signs may be subject to arrest if they trespass, harass or hinder others in their own lawful activities. If your protest involves several people, it may require a permit (which the government may not make too expensive or deny discriminatorily).

This Toolkit is designed to provide some information to help you conduct a lawful protest. To better protect yourself from arrest, consult an attorney or the government agency in charge of the location where you want to protest ahead of time. Once a protest is underway, do not harm others or put them in danger, and obey the orders of the police. Never forget that attacking a police officer, even verbally, may itself be a crime.

If you are arrested for protesting, consult with a private attorney or the Office of the Public Defender immediately. The ACLU does not handle criminal cases directly, but if your lawyer believes that you were wrongfully arrested, s/he may ask the ACLU to assist if the case raises an important constitutional issue.

IMPORTANT DISCLAIMER: This is general information, not legal advice, and the information about “City” property only applies to the City & County of Honolulu. Laws are always subject to change. This document discusses the ACLU’s understanding of what the law is; it does not mean that the ACLU necessarily agrees with the law. When in doubt, consult an attorney.

Order printed copies (free!): Call (808) 522-5906 or email office@acluhawaii.org. tell us how many copies you need and leave an address. Shipped free via U.S. Mail.

top
_______________________________________________________________________________________

Your Message

Quick reference – 6 key things to know if you choose to protest:

Generally, you have a right to stand or march on sidewalks without a permit, as long as you are obeying traffic signals and not blocking the sidewalk. You may be asked to move if several small groups gather and the sidewalk is blocked.

Generally, small groups can use City parks without a permit, but getting a permit may be a good idea even if you don’t technically need one.

If you march in the street without a permit, you risk arrest.

If you witness or experience what you believe to be police misconduct, note officers’ badge numbers, names and physical descriptions.

What is “expressive activity?”The First Amendment protects speech (“expressive activity”) where the main goal is expression, dissemination, or communication of political, religious, philosophical, or ideological opinions, views, or ideas and where no fee is charged to participate or attend.

There is no single definition of “expressive activity,” but it’s often something like this: “Expressive activity” means speech or conduct, the principal object of which is the expression, dissemination, or communication by verbal, visual, literary, or auditory means of political, religious, philosophical, or ideological opinions, views, or ideas. Expressive Activity includes, but is not limited to, public oratory and the distribution of literature.top of this section

Can I carry signs? What about signs along roads and on overpasses? Almost always, the First Amendment will protect your right to hold signs (as long as you are legally allowed to stand/sit wherever you happen to be holding the sign). You can have signs on sticks, just use your common sense and be careful not to hit anything or anyone.Generally, you can carry signs along roads and on overpasses, but you cannot place any signs on the road. You may not hang a sign from an overpass. You may wish to contact the State Dept. of Transportation, (808) 587-2220 with questions.

UPDATE (2/3/12): While we are not aware of any regulations prohibiting an individual from holding a protest sign on public property, you may want to contact the Honolulu Department of Transportation Services (www1.honolulu.gov/dts/) with questions about signs and roadways, the Department of Parks and Recreation (www1.honolulu.gov/parks/) for questions about signs in parks, and/or the Department of Planning and Permitting (http://www.honoluludpp.org/Planning.aspx) for questions about signs on private property. You may also wish to review Revised Ordinances of Honolulu § 21-7.20(d), prohibiting “[a]ny sign which by reason of its size, location, movement, content, coloring or manner of illumination constitutes a traffic hazard or a detriment to traffic safety by obstructing the vision of drivers, or by obstructing or detracting from the visibility of any official traffic control device, or by diverting or tending to divert the attention of drivers of moving vehicles from the traffic movement of the public streets and roads[.]”

Can I distribute handbills? Distributing handbills on public sidewalks or in parks is generally allowed without a permit. However, the City has rules that restrict handbilling in certain areas of Waikiki.

Can I put a small table on a public sidewalk? You are allowed to have a table (or another piece of portable furniture) on the sidewalk to display literature or other expressive material. Your table may not block the sidewalk and each person’s table can be no bigger than 5’ x 2’ (or a total of 10 square feet).

You are allowed to place a table on state property without a permit for the distribution of literature. However, you may obtain a permit in order to reserve a specific space on state property. For information about obtaining a permit to use state property, please see the applicable section below.

In City parks and buildings, you need a permit for amplified music & bullhorns.

On sidewalks, the rules seem to indicate that, during the day and early evening, you can play musical instruments (including banging coffee cans or drums) and use a bullhorn with­out a permit; however, there are complicated zoning rules that set overall noise levels, and the City Council is considering new laws that may restrict bullhorns and instruments. If a police officer tells you that you must quiet down, follow the officer’s directions and contact our office. On sidewalks, streets, and parks, you may not use a radio, tape recorder, cassette play­er, or other device for reproducing sound if the sound may be heard more than 30 feet away.

For First Amendment activities in parks, the City does not require permits for playing musical in­struments and does not limit the playing of musi­cal instruments to certain designated locations.

You cannot make loud noises (like explosives) within 500 feet of a hospital.

Can I have an overnight demonstration, at a park, even if it is closed at night and does not allow camping? No. If a park prohibits camping, then it prohibits camping for everybody. Some parks do allow overnight camping with a permit, though. Also, some public spaces are open 24 hours a day, like public sidewalks.

Can I sleep on the sidewalk? It’s not entirely clear whether you can do this without a permit. As you plan your event, contact the City’s Department of Transportation Services at (808) 768-8391. Problems? Contact us.

Can a protest “occupy” a public building? You generally cannot be inside a public building after it has closed to the public. You don’t get to ignore the rules simply because you are engaged in a First Amendment activity.top of this section

Do police have to give me a warning before I’m arrested? Not always. Police need probable cause to believe that you have committed a crime in order to arrest you. If a police officer sees you breaking the law, that’s generally enough to allow the officer to cite or arrest you.

Police cannot arrest everyone in a large crowd, merely because some people in the crowd were breaking the law. When there are large crowds of people, police will often warn the crowd to disperse to give people who just happen to be in the area (but are not part of any illegal activity) an opportunity to leave. Those who stay behind may then be arrested and charged with failing to follow police commands. If you believe you were wrongfully arrested at a demonstration, contact us.

Can I engage in civil disobedience? You may want to conduct your protest in a manner that violates the law or a police order because you feel that only such action will be effective. That is your decision and thousands of others – from Gandhi to Dr. Martin Luther King, Jr. – have done so in the past, but those who engage in such are still breaking the law, and must expect to be arrested and prosecuted. No lawyer or organization such as the ACLU can advocate a deliberate illegal act.top of this section

If I get arrested, and I “go limp,” is that still considered “resisting arrest”? Probably not, but if you use any sort of physical force against the officer, you can be charged with another crime like resisting arrest.

Can I carry a fake gun? Not if it looks anything remotely like a real gun (unless you are involved in a “living history presentation or other activity for historical interpretation or educational purposes” or you are participating in a parade with “an established historical organization, museum, military preservation organization,” or other similar group). This can be very dangerous for you, because law enforcement may respond as if it is a real weapon.

What are the penalties if I get arrested? It depends on the charges. It could be a small fine, jail time, and/or community service (for something like disorderly conduct), or it could be a serious prison term (for something like assaulting a police officer).top of this section

Can government limit access to public spaces to impede demonstrations (closing roads leading to public spaces, putting up screens or buffer zones, etc)? Whether or not the government can do so often depends on the specific area being closed and the specific facts leading to the closure. If you think your rights have been violated, confidentially contact the ACLU of Hawaii.top of this section

PERMITS – do I need one? MAYBE.

The answer depends largely on three factors:

(1) What is your event? This section applies to protected First Amendment activities – where the main goal is expression, dissemination, or communication of political, religious, philosophical, or ideological opinions, views, or ideas, and where no fee is charged to participate or attend. If your goal is to have your opinions heard (for example, by chanting and waving signs, or by marching in support of a cause) or expressing yourself through some art form, this section probably applies to you. If your goal is to have a recreational event or make money, the rules may be more strict. This document applies only to the City & County of Honolulu.

(2) How many people will be at the event? If you plan to have more than 75 people at a City park (or 150 for Kapiolani and Ala Moana Parks), you generally need a permit. If you want to block off the streets (whether on foot, on bicycle, or in some kind of vehicle), you generally need a permit no matter how many people you’re expecting.

(3) Where do you plan to protest? See guide:________________________________________________________________________________

Permits – What About:

Sidewalks: You generally don’t need a permit to march, stand, and/or hold signs on a sidewalk, as long as you’re not interfering with traffic or blocking the sidewalk. You’re also allowed to have a small table (see “Can I put a small table on a public sidewalk?” on the front page). Even if you don’t need a permit, you may still want to apply for one if you want a spot at a certain place and time. You need a permit for amplified sound. It is not always clear when you’ve left the “sidewalk” and entered a “park” (see park rules below) or private property (you may be asked to leave private property and return to the public sidewalk). Always be respectful of others using the sidewalk.

Can I protest on a sidewalk overnight?

So long as the sidewalk is open to the general public and you aren’t obstructing anyone’s use of it, you can hold a protest. Most City parks are closed overnight, so there may be some sidewalks inside the park that are considered part of the park. However, if the sidewalks are along roadways, and they are usually open to pedestrians (even at night), then they are available for an overnight protest, too. Note, however, that if a sidewalk isn’t open to the general public, then it’s not open for First Amendment activities either.

If I’m protesting on a sidewalk, can police ask me for ID?

As a general rule, if you’re not driving, you don’t have to show I.D. or give your name unless there is “reasonable suspicion” that you’re involved in a crime. (This applies to state/local law enforcement, like HPD and state sherriffs. Federal officers may ask you for ID, but you can still refuse to show it to them unless you are under arrest.) For minors, even if you are not driving, you must give your name & birth date if asked by police. Therefore, if you are on the sidewalk and not doing anything illegal, police, police cannot ask you for ID.

You may only cross the street in designated crosswalks. The only exception is when you are in a residential district and you are more than 200 feet from an intersection. If you are part of a group marching along the sidewalk, you can still be cited for jaywalking.

Parks: For Honolulu City parks (that is, parks run by the City, not the State or the Federal government) – like Ala Moana, Ala Wai, and Kapiolani Parks – you generally don’t need a permit for a small group of people. A permit usually isn’t necessary for a group of less than 75 people. However, keep in mind that if your group is only 50 people, but there are already ten other groups of 50 people using a space when you get there, the police may – depending on the size of the space – be able to keep you out. In other words, if you want to reserve your spot in the park (or if you want exclusive use of a park), you may want to get a permit even if you don’t technically need one.

The City has separate rules for pedestrian malls (for example, Fort Street Mall) . If you want to have an event on Fort Street Mall or another pedestrian mall and you have any trouble doing so, contact us.

Beaches: “The beach” is divided into two parts: the land above the high-water mark (the beach park), and the sand & water below the high water mark. The sand & water is generally under the State’s control: contact the Department of Land and Natural Resources at (808) 587-0400. For those beach parks under the City’s control (including Ala Moana and Waikiki), the sand above the high-water mark is considered to be part of the park, and the park rules, above, apply. Certain other beaches (above the high water mark) may be under private ownership, so you may have to contact the abutting property owner

Honolulu Hale (City Hall): The sidewalks surrounding Honolulu Hale are like other City sidewalks – you generally don’t need a permit to march, stand, and/or hold signs on the sidewalk, as long as you’re not in­terfering with traffic or blocking the sidewalk (though you can apply for a permit if you want to reserve space on the sidewalk or use amplified sound). In addition, you can hold a First Amendment activity in the area immediately fronting the City Hall building (the corner of King St. & Punchbowl St.) without a permit. For the remaining areas within City Hall grounds (behind and to the side of Honolulu Hale), you don’t need a permit so long as (1) there are fewer than 25 people, (2) you don’t charge a fee, (3) the event is three hours or less, and (4) you do not erect any temporary structures (like tents).

State property: No permit is necessary for expressive activity on state property controlled by the Department of Accounting and General Services. However, if you wish to reserve a specific area for expressive activity, you may wish to obtain a permit.

Federal property & military installations: First Amendment activities on Fort DeRussy grounds involving more than 100 people require notice and a permit. You must contact the Hale Koa Hotel General Manager to apply for a permit at least 48 hours prior to the planned activity. No permit is required for spontaneous expression in response to unforeseeable and recent news events. However, as much notice as possible should be given under the circumstances.

Protests and other free speech activities are allowed on the sidewalks surrounding the Prince Jonah Kuhio Kalanianaole Federal Building (the main Federal Building on Ala Moana Blvd.) at any time, so long as you are not blocking vehicle entrances/exits. If you want to hold an event on the grounds of the Federal Building (or other federal property), you need a permit from General Services Administration.

The Supreme Court has ruled that no one has a right to protest on military bases, even if the person is a member of the military.

University of Hawaii at Manoa: You generally don’t need a permit to march, stand and/or hold signs on the University of Hawaii Manoa campus (“UH”), so long as you aren’t breaking any other laws or UH rules, and so long as you aren’t interfering with UH activities. If you want exclusive use of an area for a certain date and time (for example, the Campus Center Designated Public Forum), you must get a permit in advance (at least 30 days for grounds use, but no advance time for Public Forum use so long as no one else is using it). Reservations are first come, first served. Note that UH students who are found to have violated the Student Conduct Code or other UH rules while participating in a free speech activity may suffer consequences from the UH. For more information, contact Campus Security at (808) 956-6911 or visit the sites below.

If you would like to protest at other public universities or colleges, consult that the codes and regulations for that campus and contact your school’s security office and/or facilities office. If you encounter resistance or denial, contact our office.

What about spontaneous protests? If something happens in the news, and you want to have an event right away (and there’s no time to get a permit): you can generally have a demonstration in City parks and at Fort DeRussy, you just need to give as much notice as possible to the City Department of Parks & Recreation, for parks, or to the Hale Koa manager, for Fort DeRussy (see “Where to apply”). If you choose to obtain a permit for a spontaneous protest on State property, DAGS must waive the advance-notice requirement and grant the permit (unless another group has already been granted a permit for the same location).

For other federal property, including the Federal Building, call the General Services Administration at (808) 541-1950.top______________________________________

Frequently Asked Questions – Permits

How do I know who controls the property where I want to have my demonstration (City, State, or federal government)? If you don’t see a sign that says who controls the property, you can call the City parks department at (808) 768-3003 to ask who controls the property. You can also try looking it up on the Internet.

Do I need to pay the City to get a park/parade permit? Generally, no. If you want a permit for a City park, you don’t have to pay an application fee.

If you’re planning a parade or an event in a park, the City may ask if you have insurance. You generally don’t have to have insurance, so long as you certify either that (a) you can’t get it or (b) you can’t afford it.

If you’re having a parade, the City may ask you to pay some of the costs of having the police block off the streets for you, but the City may waive these fees if you certify that you can’t afford it. Problems? Contact us.

The City also cannot require you to sign anything that says you promise to pay for any damage done by any of the people at your event (an “indemnification agreement”). You are required to do your best to clean up after yourselves, and you should tell all participants to be respectful of all public property.

If I don’t get a permit, what will happen? It’s possible that the police may cite you (or arrest you) for not having a permit. If you hear the police order you to disperse, and you don’t, you will probably be arrested. If you believe the police wrongfully shut down your demonstration, contact us.

top
_________________________________________________________________________________

Special Section: Protesting on the Neighbor Islands

Hawaii, Kauai and Maui Counties

While rules for state property are the same throughout Hawaii, rules for county property differ from county to county. We are in the process of compiling more detailed information for Hawaii, Kauai, and Maui Counties; in the meantime, you may want to consult the following for rules that may affect your protest (e.g., rules on permits, signs, handbills, noise, parades):

SPECIAL SECTION: Your rights to document in public & law enforcement encounters

In Hawaii, generally, you can take photographs or video/audio recordings of the police, so long as you do not interfere with the police officers’ duties.

When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.

When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

Police officers may not generally confiscate or demand to view your photographs or video without a warrant. If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them). If a police officer searches and/or seizes your phone, contact us.

Police may not delete your photographs or video.

Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by individuals photographing them.

The right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.

–> If an officer stops you for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary.

If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment.

Special considerations when videotaping or taking an audio recording: You can record your own interactions with officers without violating Hawaii wiretap statutes (since you are one of the participants). Where you are an observer but not a part of the conversation, you can record what the police are doing so long as the police officer does not appear to be having a private conversation (in other words, where the officer has a reasonable expectation of privacy). If police officers are interacting with demonstrators on a crowded public street, the officers generally have no reasonable expectation of privacy. If a police officer and another individual are talking quietly in a secluded area – that is, if it looks like the police officer is trying to have a “private” conversation with someone – then you generally cannot record the conversation.

State v. Graham, 70 Haw. 627 (1989)

State v. Okubo, 67 Haw. 197 (1984)

State law regarding violation of privacy in the second degree, H.R.S. § 711-1111(e)

Rights of ADULTS age 18+ when encountering law enforcement in Hawaii:

Don’t argue, swear, or threaten a complaint. Anything you say or do can be used against you.

Don’t touch a police officer.

Don’t resist arrest, even if you’re innocent.

Don’t resist – but do not consent – to searches, even if you’re innocent.

Never interfere with or obstruct police – you can be arrested for it.

Don’t make statements about the incident until you talk to a lawyer.

Write down everything you recall right away, including badge & patrol car numbers.

Sign and accept tickets, or you can be arrested.

Injured in a police stop? Get medical help, take photos.

Detained or questioned by law enforcement:

Ask: “Am I under arrest?” If yes, ask why. If no, you are free to leave.

ID Checks:

If you’re not driving, you don’t have to show I.D. or give your name unless there is “reasonable suspicion” that you’re involved in a crime. While you generally can’t be arrested for refusing, officers do have wide latitude to compel you to give your name.

Drivers must show license, registration & proof of insurance. You may ask for a blood or urine test instead of a breath test or field sobriety test. You may also refuse all tests, and will face a possible one-year license suspension. If driving commercially, laws or company rules may compel you to take a test. Talk to your lawyer.

Searches:

Don’t resist, but never consent to searches of your car, house or person. Consenting can affect your rights later in court. You can’t be arrested for refusal to consent.

Police may search your car or “pat down” your clothes when they believe there is “probable cause.” Police may enter your home if an emergency exists (e.g. a person screaming). Upon arrest, police can search you & the area close by. In a building, this is usually just the room you’re in. If police say they have a search warrant, ask to see it.

If you are arrested:

Don’t say anything or answer any questions without a lawyer’s counsel. Tell police your name, that you wish to remain silent and that you request a lawyer. Call your lawyer or a public defender:

Oahu: District 808-586-2100

Felony 808-586-2200

You have the right to a local phone call within a reasonable time of arrest/booking. Unless you’re calling a lawyer, police may listen.

You must be charged or taken before a judge within 2 business days. Ask your lawyer to see if you can get bail lowered or be released without bail.

top
_______________________________________________________________________________________________________________

Rights of YOUTH up to age 18 when encountering law enforcement in Hawaii:

Don’t argue, swear, or threaten a complaint. Anything you say or do can be used against you.

Don’t touch a police officer.

Don’t resist arrest, even if you’re innocent.

Don’t resist – but do not consent – to searches, even if you’re innocent.

Never interfere with or obstruct police – you can be arrested for it.

Don’t make statements about the incident until you talk to a lawyer.

Write down everything you recall right away, including badge & patrol car numbers.

Sign and accept tickets, or you can be arrested.

Injured in a police stop? Get medical help, take photos.

Detained or questioned by law enforcement:

Ask: “Am I under arrest?” If yes, ask why. If no, you are free to leave.

ID Checks:

Even if you are not driving, minors must give name & birth date. Drivers must show license, vehicle registration & proof of insurance. Minor passengers must give their name & birth date. Minors suspected of intoxicated driving face an automatic 180-day license suspension. If an officer suspects you’re intoxicated, they can arrest you. Police may not test you for drugs or alcohol without the consent of you or your legal guardian. You may request a sobriety test to prove your innocence.

Searches:

Don’t resist, but never consent to searches. Consenting can affect your rights later in court. You can’t be arrested for refusal to consent. Police may search your car or “pat down” your clothes when they believe there is probable cause. Police may enter your home if an emergency exists (e.g. a person screaming). Upon arrest, police can search you & the area close by. In a building, this is usually just the room you’re in. If police say they have a search warrant, ask to see it. Searched at a public school? Board of Education rules (http://www.hawaiiboe.net/AdminRules/Pages/default.aspx – look for Ch. 19) give schools some authority to search students & lockers, but school officials still must follow the Constitution. Searched unfairly? Contact us!

On probation?

It’s easy to think of probation officers like a social worker or even a friend: be careful. They have similar authority to police. Anything you say to them can be used against you.

If you are arrested:

Don’t say anything without a lawyer. Give your name, address & birth date, but respectfully decline to say more until your lawyer is there. At the state juvenile facility, public defenders are available weekdays. If released to a parent or guardian, Family Court will arrange for a public defender before your trial or you can hire a private attorney.

In addition to your lawyer, you may also have a parent or legal guardian present before questioning. Police do not have to offer this, you must ask & insist. You have no right to a phone call. Police will call for you, Unless you’re calling a lawyer, police may listen. Your guardian must be notified of your arrest.

In Family Court, you must be charged or taken before a judge within 2 business days. You have no right to bail.

Expect a hearing the next weekday with a Juvenile Supervisor. You can be released to a parent or guardian at the discretion of a Juvenile Supervisor, so consider your behavior.

What if I’m approached by police in Hawaii, Kauai or Maui County?

Your rights under the United States and Hawaii Constitutions are the same throughout Hawaii – the only things that change are the contact numbers for the public defender’s office, information about arrested persons, and police commissions/internal affairs offices in each county.

Quick reference: Useful contact information for protesters

ACLU of Hawaii:

“Know your Rights” line: Ph. (808) 522-5906

This confidential line will take information about problems the public may experience in exercising their free speech rights. Messages are checked regularly and the ACLU will take action as appropriate. The ACLU would like to know if you are having problems such as obtaining a permit for your First Amendment activity or have concerns about interactions with law enforcement. Leave your name and contact information such as mailing address, email, phone number. Also leave as much detail as you can about your problem. We will follow up with you as needed.